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July 25, 2000

Mr. Dan T. Saluri
Assistant City Attorney
City Of Lubbock
P. O. Box 2000
Lubbock, Texas 79457

OR2000-2799

Dear Mr. Saluri:

You ask whether certain information is subject to required public disclosure under chapter 552 of the Government Code. Your request was assigned ID# 137338.

The City of Lubbock (the "city") received a request for complete copies of a specified police officer's personnel file maintained by the Lubbock Police Department, suspension proceedings, and all documents relating to any criminal investigation of the police officer. You claim that the requested information is excepted from disclosure under sections 552.101, 552.102, 552.103, 552.108, and 552.117 of the Government Code. We have considered the exceptions you claim and reviewed the submitted information.

Section 552.101 excepts from disclosure "information considered to be confidential by law, either constitutional, statutory, or by judicial decision." This section encompasses information protected by statute. You represent that the documents in Attachment 2 are maintained by the Lubbock Police Department under section 143.089(g) of the Local Government Code. Section 143.089 of the Local Government Code contemplates two different types of personnel files, one that the city's police department is required to maintain as part of the police officer's civil service file, and one that the city's police department may maintain for its own internal use. Local Gov't Code 143.089(a), (g). Section 143.089(a) provides for the maintenance of the police officer's civil service file as follows:

(a) The director or the director's designee shall maintain a personnel file on each fire fighter and police officer. The personnel file must contain any letter, memorandum, or document relating to:

(1) a commendation, congratulation, or honor bestowed on the fire fighter or police officer by a member of the public or by the employing department for an action, duty, or activity that relates to the person's official duties;

(2) any misconduct by the fire fighter or police officer if the letter, memorandum, or document is from the employing department and if the misconduct resulted in disciplinary action by the employing department in accordance with this chapter; and

(3) the periodic evaluation of the fire fighter or police officer by a supervisor.

(b) A letter, memorandum or document relating to alleged misconduct by the fire fighter or police officer may not be placed in the person's personnel file if the employing department determines that there is insufficient evidence to substantiate the charge of misconduct.

(c) A letter, memorandum, or document relating to disciplinary action taken against the fire fighter or police officer or to alleged misconduct by the fire fighter or police officer that is placed in the person's personnel file as provided by subsection (a)(2) shall be removed from the employee's file if the commission finds that:

(1) the disciplinary action was taken without just cause; or

(2) the charge of misconduct was not supported by sufficient evidence.

Information that section 143.089(b) and (c) prohibit from being placed in the civil service file may be maintained in a police department's internal file, as provided in section 143.089(g):

A fire or police department may maintain a personnel file on a fire fighter or police officer employed by the department for the department's use, but the department may not release any information contained in the department file to any agency or person requesting information relating to a fire fighter or police officer. The department shall refer to the director [of the civil-service commission] or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file.

Subsection (g) authorizes city police and fire departments to maintain for their own use a file on a police officer or fire fighter that is separate from the file maintained by the city civil service commission. "The department may not release any information contained in the department file to any agency or person," but instead "the department shall refer to the director [of the civil-service commission] or the director's designee a person or agency that requests information that is maintained in the fire fighter's or police officer's personnel file." Local Gov't Code 143.089(g); see City of San Antonio v. Texas Attorney General, 851 S.W.2d 946, 952 (Tex. App.-Austin 1993, writ denied). You claim that the director of civil service has forwarded to the requestor a copy of the civil service personnel file maintained pursuant to section 143.089(a). You also assert that the request for suspension proceedings has been satisfied because the civil service personnel file includes all information required to be maintained under section 143.089(a).

The court in City of San Antonio addressed the availability of information that is contained in the department's internal file pursuant to section 143.089(g). The court determined that section 143.089(g) makes confidential any records kept in a department's internal file. City of San Antonio, 851 S.W.2d at 946 (in construing section 143.089 the court found general legislative policy that allegations of misconduct against police officers and fire fighters not be subject to compelled disclosure unless they have been substantiated and resulted in disciplinary action). You inform this office that the documents in Attachment 2 are not included in the personnel file maintained by the civil service director, but rather are maintained in the section 143.089(g) internal personnel file. However, we note that the internal affairs investigation table of contents, which we have marked, appears to be a document from the city relating to the officer's misconduct. If disciplinary action arose from the misconduct investigated in the internal investigation, then the table of contents should be included in the civil service personnel file under section 143.089(a) and would not be excepted under section 143.089(g). However, if disciplinary action did not arise out of the misconduct investigated in the internal investigation, then the table of contents would not be required to be placed in the civil service personnel file. Based on your representations, we conclude that the remaining information in Attachment 2 is confidential under section 143.089(g). Therefore, you must withhold the remaining information in Attachment 2 under section 552.101 in conjunction with section 143.089(g) of the Local Government Code. (1)

Next, you assert that Attachment 3, which contains a copy of the criminal investigation relating to the specified police officer, is excepted from disclosure under section 552.108. Section 552.108(a)(1) excepts from disclosure information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime if release of the information would interfere with the detection, investigation, or prosecution of crime. You state that the grand jury no billed the felony charges, but recommended that misdemeanor charges be brought against the police officer. Although misdemeanor charges have not been filed against the police officer, you state that the statute of limitations has not run. Based on your representations, we conclude that Attachment 3 relates to an on-going investigation. Accordingly, we find that release of the requested information would interfere with the detection, investigation, or prosecution of crime. See Houston Chronicle Publ'g Co. v. City of Houston, 531 S.W.2d 177 (Tex. Civ. App.-Houston [14th Dist.] 1975), writ ref'd n.r.e. per curiam, 536 S.W.2d 559 (Tex. 1976) (court delineates law enforcement interests that are present in active cases). Therefore, we conclude that the city may withhold the information in Attachment 3 under section 552.108(a)(1).

However, section 552.108 is inapplicable to basic information about an arrested person, an arrest, or a crime. Gov't Code 552.108(c). We believe such basic information refers to the information held to be public in Houston Chronicle. 531 S.W.2d at 177. Thus, with the exception of the basic front page offense and arrest information, you may withhold the requested information from disclosure based on section 552.108(a)(1). We note that you have the discretion to release all or part of the remaining information that is not otherwise confidential by law. Gov't Code 552.007.

In summary, if no disciplinary action resulted from the misconduct investigated in the internal investigation, you must withhold the table of contents under section 552.101 of the Government Code in conjunction with section 143.089(g) of the Local Government Code. You must also withhold the remaining information in Attachment 2 under section 552.101 in conjunction with section 143.089(g) of the Local Government Code. Further, you may withhold Attachment 3 under section 552.108(a)(1) of the Government Code but you must release basic information.

This letter ruling is limited to the particular records at issue in this request and limited to the facts as presented to us; therefore, this ruling must not be relied upon as a previous determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the governmental body and of the requestor. For example, governmental bodies are prohibited from asking the attorney general to reconsider this ruling. Gov't Code 552.301(f). If the governmental body wants to challenge this ruling, the governmental body must appeal by filing suit in Travis County within 30 calendar days. Id. 552.324(b). In order to get the full benefit of such an appeal, the governmental body must file suit within 10 calendar days. Id. 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the governmental body does not comply with it, then both the requestor and the attorney general have the right to file suit against the governmental body to enforce this ruling. Id. 552.321(a).

If this ruling requires the governmental body to release all or part of the requested information, the governmental body is responsible for taking the next step. Based on the statute, the attorney general expects that, within 10 calendar days of this ruling, the governmental body will do one of the following three things: 1) release the public records; 2) notify the requestor of the exact day, time, and place that copies of the records will be provided or that the records can be inspected; or 3) notify the requestor of the governmental body's intent to challenge this letter ruling in court. If the governmental body fails to do one of these three things within 10 calendar days of this ruling, then the requestor should report that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839. The requestor may also file a complaint with the district or county attorney. Id. 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the requested information, the requestor can appeal that decision by suing the governmental body. Id. 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,411 (Tex. App.--Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments about this ruling, they may contact our office. Although there is no statutory deadline for contacting us, the attorney general prefers to receive any comments within 10 calendar days of the date of this ruling.

Sincerely,

Jennifer Bialek
Assistant Attorney General
Open Records Division

JHB/nc

Ref: ID# 137338

Encl. Submitted documents

cc: Mr. Charles Dunn
Dunn & Walker
Attorneys At Law
P. O. Box 311
Lubbock, Texas 79408-0311
(w/o enclosures)


 

Footnotes

1. Because we have found that the personnel file may be withheld under section 143.089(g) of the Local Government Code, we need not address the applicability of your other asserted exceptions to information in Attachment 2.
 

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